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You can claim those fees in on your 2009 taxes.
The tax credit for domestic adoptions allows for failed adoption expenses in the year after the year you paid them. So since you paid them in 2008, you will be able to claim them in 2009. You won't be able to e-file (unless they changed the rule) and you will need to list the agency/attorney you paid expenses to at the bottom of the adoption tax credit form since you won't have an ATIN or SSN to use since you did not have a placement.
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Erin
Mommy to Natalie, 11/2004, via domestic open adoption
Waiting since 7/2008 for adoption #2
I too have a blog
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